Earle J. Fisher v. Tre Hargett

08/05/2020

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

July 30, 2020 Session

EARLE J. FISHER, ET AL. v. TRE HARGETT, ET AL.

Appeal by Permission from the

Chancery Court for Davidson County

No. 20-0435-III, Ellen Hobbs Lyle, Chancellor

___________________________________

No. M2020-00831-SC-RDM-CV

___________________________________

BENJAMIN LAY, ET AL. v. MARK GOINS, ET AL.

Appeal by Permission from the

Chancery Court for Davidson County

No. 20-0453-III Ellen Hobbs Lyle, Chancellor

___________________________________

No. M2020-00832-SC-RDM-CV

___________________________________

We assumed jurisdiction over these appeals1 pursuant to Tennessee Code Annotated

section 16-3-201(d)(1) (2009 & Supp. 2019) and Rule 48 of the Rules of the Tennessee

Supreme Court and ordered expedited briefing and oral argument. The issue we must

determine is whether the trial court properly issued a temporary injunction enjoining the

State from enforcing its current construction of the eligibility requirements for absentee

voting stated in Tennessee Code Annotated section 2-6-201(5)(C) and (D) (2014 & Supp.

2019). The injunction temporarily mandated the State to provide any eligible Tennessee

1

Although these cases were not consolidated in the trial court, they were heard together and a

single opinion was issued in both cases. We consolidated the appeals for oral argument. The parties have

agreed that all evidence in the record from the trial court may be considered in both appeals and that the

legal and factual questions in both are the same. We, therefore, consider the appeals together and issue

this single opinion in both. Unless otherwise stated, references in this opinion to plaintiffs and defendants

will refer to those parties in both cases.

voter, who applies to vote by mail in order to avoid transmission or contraction of

COVID-19, an absentee ballot in upcoming elections during the pendency of pandemic

circumstances. The injunction further mandated the State to implement the construction

and application of Tennessee Code Annotated section 2-6-201(5)(C) and (D) that any

qualified voter who determines it is impossible or unreasonable to vote in-person at a

polling place due to the COVID-19 situation shall be eligible to check the box on the

absentee ballot application that ‟the person is hospitalized, ill or physically disabled and

because of such condition, the person is unable to appear at the person’s polling place on

election day; or the person is a caretaker of a hospitalized, ill or physically disabled

person,” and have that absentee voting request duly processed by the State in accordance

with Tennessee law. At oral argument before this Court, the State conceded that, under

its interpretation of Tennessee Code Annotated section 2-6-201(5)(C) and (D), persons

who have underlying medical or health conditions which render them more susceptible to

contracting COVID-19 or at greater risk should they contract it (“persons with special

vulnerability to COVID-19”), as well as those who are caretakers for persons with special

vulnerability to COVID-19, already are eligible to vote absentee by mail. We hold that

injunctive relief is not necessary with respect to such plaintiffs and persons. We instruct

the State to ensure that appropriate guidance, consistent with the State’s acknowledged

interpretation, is provided to Tennessee registered voters with respect to the eligibility of

such persons to vote absentee by mail in advance of the November 2020 election.

With respect to those plaintiffs and persons who do not have special vulnerability

to COVID-19 or who are not caretakers for persons with special vulnerability to COVID-

19, we hold that the trial court erred in issuing the temporary injunction. Accordingly,

we vacate the temporary injunction. Recognizing that absentee ballots already have been

cast for the August 6, 2020 election consistent with the trial court’s temporary injunction,

and mindful of the goal of avoiding alterations to election rules on the eve of an election,

the absentee ballots of all Tennessee registered voters who timely requested and

submitted an absentee ballot by mail for the August 6, 2020 election pursuant to the trial

court’s temporary injunction and which absentee ballots otherwise meet the requirements

of the absentee voting statutes shall be duly counted. These cases are remanded to the

trial court for further proceedings consistent with this opinion.

This opinion is not subject to rehearing under Tennessee Rule of Appellate

Procedure 39, and the Clerk is directed to certify this opinion as final and to immediately

issue the mandate.

Tenn. Code Ann. § 16-3-201(d)(1) Appeal by Permission; Judgments of the

Chancery Court Vacated and Cases Remanded

-2-

CORNELIA A. CLARK, J., delivered the opinion of the Court, in which JEFFREY S. BIVINS,

C.J., HOLLY KIRBY, and ROGER A. PAGE, JJ., joined. SHARON G. LEE, J., filed a separate

opinion concurring in part and dissenting in part.

Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor

General; Janet M. Kleinfelter, Deputy Attorney General; and Alexander S. Rieger,

Assistant Attorney General, Nashville, Tennessee, for the appellants, Mark Goins, Tre

Hargett, William Lee, and Herbert H. Slatery III, each in his official capacity for the State

of Tennessee.

Steven J. Mulroy, Jacob W. Brown, and Bruce S. Kramer, Memphis, Tennessee, for the

appellees, Reverend Earle J. Fisher, Julia Hiltonsmith, Jeff Bullard, Allison Donald, and

#UptheVote901.

Thomas H. Castelli, Nashville, Tennessee, Elizabeth Sitgreaves, Brentwood, Tennessee,

Angela M. Liu, Chicago, Illinois, Dale E. Ho, Sophia Lin Lakin, Neil A. Steiner, New

York, New York, and Gregory P. Luib and Tharuni A. Jayaraman, Washington, D.C. for

the appellees, Benjamin William Lay, Carole Joy Greenawalt, and Sophia Luangrath.

William S. Consovoy, Cameron T. Norris, and Jordan M. Call, Arlington, Virginia, for

the amicus curiae, Honest Elections Project.

Brian K. Kelsey, Chicago, Illinois and Sue L. Becker, Indianapolis, Indiana, for the

amicus curiae, The Public Interest Legal Foundation.

Jason B. Torchinsky, Dennis W. Polio, Jonathan P. Lienhard, Warrenton, Virginia, and

Justin N. Joy, Memphis, Tennessee, for the amicus curiae, The Republican National

Committee and Tennessee Republican Party.

Danielle M. Lang, Ravi R. Doshi, Dana Paikowsky, Pooja Chaudhuri, Ezra D.

Rosenberg, Washington, D.C. and William L. Harbison, Lisa K. Helton, Christopher C.

Sabis, Christina R.B. López, Nashville, Tennessee, for the amici curiae, League of

Women Voters of Tennessee, Tennessee State Conference of the NAACP, Memphis

Central Labor Council, Memphis A. Philip Randolph Institute, The Equity Alliance, and

Free Hearts.

Stephen J. Zralek, Nashville, Tennessee, and Debo P. Adegbile, New York, New York,

for the amici curiae, David M. Aronoff, M.D., Nina Fefferman, Ph. D., James E.K.

Hildreth, Sr., Ph. D., M.D., William Schaffner, M.D., Thomas Talbot, M.D., M. P.H,

Edwin Trevathan, M.D., M.P.H., C. William Wester, M.D., M.P.H., Doctors and

Professors Specializing in Epidemiology and Infectious Diseases.

-3-

Van D. Turner, Jr. and Bruce Turner, Memphis, Tennessee, for the amici curiae, The

Tennessee Black Caucus of State Legislators, The Ben F. Jones Chapter of the National

Bar Association, and the Tennessee Alliance of Black Lawyers.

OPINION

I. Factual and Procedural History

The State of Tennessee, like the entirety of the United States, is in the midst of an

unprecedented public health crisis due to COVID-19. The Tennessee Attorney General

recently described the situation faced by the State and the country:

The United States is in a public health crisis due to COVID-19. On

January 31, 2020, the United States Department of Health and Human

Services determined that, as of January 27, 2020, COVID-19 constituted a

nationwide public health emergency. On March 11, 2020, the World

Health Organization classified COVID-19 as a global pandemic. The

pandemic remains ongoing and is currently surging.

Symptoms of COVID-19 can include fever, cough, shortness of breath,

fatigue, loss of the senses of taste and smell, and body aches, among others.

And the health effects of the disease can be severe, including serious

damage to the lungs and other internal organs, and death. People with

certain underlying health conditions and older adults have a heightened

vulnerability to severe illness and death if they contract the virus.

As of July 16, 2020, at least 3,416,428 people in the United States have

been infected with the virus and over 135,991 people have died from the

disease that it causes. In Tennessee, there have been 68,441 confirmed

cases, 3,434 hospitalizations, and 755 deaths since the first case was

reported by the Tennessee Department of Health on March 5, 2020.2

2

As of August 4, 2020, one source reports that 4,773,775 people in the United States have been

infected with COVID-19 and that 156,874 people have died. COVID-19 Dashboard, Johns Hopkins

Coronavirus Resource Center, https://coronavirus.jhu.edu/ (last visited Aug. 5, 2020); see also Centers

for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-

us.html (last visited Aug. 5, 2020) (reporting that 4,698,818 persons in the United States have been

infected with COVID-19 and that 155,204 deaths from COVID-19). In Tennessee, there have been

112,441 confirmed cases, at least 4,900 hospitalizations, and 1,117 confirmed deaths. Tennessee

-4-

COVID-19 is particularly dangerous not only because it results in severe

illness, but also because it is easily and rapidly transmitted. The disease is

believed to be transmitted through respiratory droplets produced by an

infected person, close personal contact, or touching a surface with the virus

on it. The virus spreads very easily through “community spread.” While

infected individuals are thought to be the most contagious when they are

showing symptoms, asymptomatic individuals are also capable of spreading

the virus, which makes response efforts particularly daunting.

Because there is currently no vaccine, cure, or proven effective treatment

for COVID-19, the best way to prevent illness is to avoid being exposed to

the virus. The Centers for Disease Control and Prevention (“CDC”)

recommends frequent hand washing, maintaining good social distance (at

least [six] feet), routinely cleaning and disinfecting frequently touched

surfaces, and covering mouth and nose with a cloth face covering when

around others.

Op. Tenn. Att’y Gen. No. 20-14 at **1–2 (July 24, 2020) (internal citations and footnotes

omitted). In his most recent executive order related to the COVID-19 pandemic,

defendant Governor William Lee similarly recognized the continuing “threat to our

citizens, our healthcare systems, and our economy” posed by COVID-19. 2019 Tenn.

Exec. Order No. 55 at 1 (July 31, 2020).

In response to the COVID-19 pandemic, the Governor declared a state of

emergency on March 12, 2020. As recently as July 31, 2020, the Governor declared that

the state of emergency remains in effect. Id. The Governor additionally has continued to

issue executive orders “designed to slow the spread of the disease and to protect the

health of Tennessee residents.” Op. Tenn. Att’y Gen. No. 20–14 at *2 (July 24, 2020)

(footnote omitted).

In response to the COVID-19 pandemic, defendant Coordinator of Elections Mark

Goins oversaw the Tennessee Division of Elections’ preparation and issuance of the

April 23, 2020 Tennessee Election COVID-19 Contingency Plan (the “Plan”). The Plan

contains numerous COVID-19 related measures delineating procedures for in-person

voting for the August and November 2020 elections. The Plan anticipates an increase in

those voters who choose to vote absentee by mail pursuant to Tennessee’s absentee

COVID-19 Unified Command Dashboard, Tennessee Department of Health,

https://www.tn.gov/health/cedep/ncov.html (last visited Aug. 5, 2020).

-5-

voting statute, Tennessee Code Annotated section 2-6-201.3 The Plan does not expressly

provide, however, for any expansion of those persons who are eligible to vote absentee

by mail pursuant to the statute.

Relevant to this appeal, the statutory qualifying reasons for voting absentee by

mail include the following:

A registered voter in any of the following circumstances may vote absentee

by mail in the procedures outlined in this part:

…

(5) Persons Over 60--Persons Hospitalized, Ill or Disabled. ...

(C) The person is hospitalized, ill or physically disabled, and because of

such condition, the person is unable to appear at the person’s polling place

on election day; or

(D) The person is a caretaker of a hospitalized, ill or disabled person

Tenn. Code Ann. § 2-6-201(5)(C) and (D) (2014 & Supp. 2019). With respect to

absentee voting by mail related to COVID-19, the Plan construes these pertinent statutory

eligibility requirements for voting absentee by mail as limited to the following

individuals: “A person who is quarantined because of a potential exposure or who has

tested positive to COVID-19 should vote absentee by-mail as a person who is ill.”

Coordinator of Elections Goins explained in his declaration filed in the trial court that

“[t]he statutory eligibility criteria do not include fear of becoming ill or of spreading

COVID-19. A person who is quarantined because of a potential exposure or who has

tested positive to COVID-19 should vote absentee by-mail as a person who is ill.”

On May 8, 2020, plaintiffs Reverend Earle J. Fisher, Julia Hiltonsmith, Jeff

Bullard,4 Allison Donald, and #UptheVote9015 filed a complaint seeking injunctive and

3

According to a report released by the State, as of Saturday, August 1, 2020, early voting

statistics show that a total of 578,252 voters in Tennessee have cast a ballot in the August 2020 election.

Tenn. Sec’y of State, Early and Absentee Voters for the August 6, 2020 Primary and General Elections 1,

https://sos-tn-gov-files.tnsosfiles.com/20200806EarlyAbsentee.pdf?_yefR2cV_AtuK0SxVxWUdEacquvW3FxT

(last updated Aug. 3, 2020, 9:24 AM). The report amalgamates “in-person early voters, absentee by-mail

ballots submitted by voters, and voters at licensed facilities” and does not delineate the numbers in those

subcategories separately. Id. Overall, these numbers indicate an increase in early voting participation of

76.91% from 2012 and 105.59% from 2016. Tenn. Sec’y of State, Early Voting Stats through 14 days—

All Voters 3, https://sos-tn-gov-files.tnsosfiles.com/August%202020%20-%20All.pdf?01d105W34S

F4muRgCFrdacMR7BJ8VhO8 (last visited on Aug. 4, 2020).

-6-

declaratory relief against, Tre Hargett, Secretary of State of Tennessee; Mark Goins,

Coordinator of Elections; William Lee, Governor of the State of Tennessee; and Herbert

H. Slatery III, Attorney General and Reporter, suing each in his official capacity for the

State of Tennessee. The Fisher plaintiffs alleged that the individual plaintiffs are all

registered Tennessee voters who wish to vote by mail in the August 2020 and November

2020 elections due to the COVID-19 pandemic but who do not satisfy the statutory

eligibility requirements for absentee voting by mail set forth in Tennessee Code

Annotated section 2-6-201. The Fisher plaintiffs alleged that Reverend Fisher wishes to

vote by mail “because his appearing in person at a polling site would increase his

personal risk of contracting or transmitting [COVID-19], as well as the societal risk that a

clustering of persons at polling locations will precipitate another ‘surge’ in COVID-19

cases across the state.” Reverend Fisher alleged that he “reasonably fears that voting in

person at a polling location would expose him to an increased and unwarranted risk of

contracting [COVID-19], which in turn would compromise his ability to tend to members

of his flock in their times of need.” The Fisher plaintiffs similarly alleged that Ms.

Hiltonsmith wishes to vote absentee by mail due to the risk associated with voting in

person. They further alleged that “Ms. Hiltonsmith has been diagnosed with an

autoimmune disorder that, according to current guidelines of medical professionals and

federal and state officials, makes her especially vulnerable to [COVID-19],” and that she

also has regular contact with a family member who is particularly vulnerable to it. The

Fisher plaintiffs alleged that Ms. Donald wishes to vote absentee by mail due to the risk

associated with voting in person, that she suffers from a medical condition that renders

her particularly vulnerable to COVID-19, and that she works with clients who suffer from

such conditions. Finally, the Fisher plaintiffs alleged that #UpTheVote901 is a Memphis-

based volunteer organization devoted to educating voters and increasing voter registration

and turnout. They alleged that the current statutory eligibility requirements for absentee

voting by mail will unduly burden the right to vote of certain of #UpTheVote901’s

members and have a chilling effect on voter turnout.

The Fisher plaintiffs sought declaratory and injunctive relief to expand access to

vote-by-mail procedures to all registered Tennessee voters who wish to vote absentee

during the COVID-19 pandemic. They contended that, in the midst of the COVID-19

pandemic, restricting Tennesseans’ vote-by-mail access to voters over sixty years of age,

or who otherwise meet one of the other absentee ballot eligibility criteria in Tennessee

4

The trial court held that Plaintiff Jeff Bullard lacked standing, and that holding is not before this

Court on appeal.

5

Additional plaintiffs Hunter Demster and Ginger Bullard were voluntarily dismissed by order

filed June 1, 2020.

-7-

Code Annotated section 2-6-201, would impose impermissibly burdensome conditions on

the right to vote under article I, section 5 of the Tennessee Constitution.6

The Fisher plaintiffs requested that the court declare that:

(a) . . . every registered voter in Tennessee shall be eligible, upon

request, to vote absentee in the August 2020 and November 2020 elections;

(b) . . . any registered Tennessee voter attempting to vote

absentee in the August 2020 or November 2020 election, or both, shall be

considered “otherwise eligible to vote absentee” for purposes of the voter’s

attestation on any voter’s affidavit form contemplated by Tenn[essee] Code

Ann[otated section] 2-6-309(b);

(c) . . . because of [COVID-19]’s threat to individual and public

safety, requiring the individual [p]laintiffs and similarly situated others to

vote in person for the August 2020 and November 2020 elections would

impose an impermissibly burdensome condition on these individuals’

voting rights, in violation [sic] the Tennessee Constitution;

(d) . . . because of [COVID-19]’s threat to individual and public

safety, requiring these individual [p]laintiffs and similarly situated others to

vote in person for the August 2020 and November 2020 elections would

6

The Fisher plaintiffs also raised two additional claims. First, they contended that enforcing the

restrictions during the pandemic would constitute one or more unlawful classifications of Tennesseans,

violating the equal protection clause of the Tennessee Constitution. In the alternative, the Fisher plaintiffs

contended that the only constitutionally compliant construction of Tennessee Code Annotated section 2-6-

201(3)(A) allows for a Tennessee-licensed physician to certify the entire population of a county

“medically unable to vote” because of the danger posed by the pandemic. The trial court did not address

the Fisher plaintiffs’ equal protection clause constitutional challenge and denied their alternative claim for

relief. The Fisher plaintiffs’ only mention of these claims is in a footnote in their brief before this Court,

in which they assert that they are preserving these claims on appeal. This is not sufficient to preserve

issues relating to these claims, and any such issues are deemed waived for purposes of the instant appeal.

See Hodge v. Craig, 382 S.W.3d 325, 334–35 (Tenn. 2012) (holding that, pursuant to the Tennessee

Rules of Appellate Procedure, an issue may be deemed waived if it is not designated specifically as an

issue in the party’s brief or if it is stated in party’s brief but not accompanied by sufficient argument).

-8-

constitute an improper classification burdening the fundamental right to

vote under that Constitution; or in the alternative,

(e) . . . in the midst of the COVID-19 pandemic, Tennessee law

allows a Tennessee-licensed physician to validly certify to a county election

commission that all voters in that county are medically unable to vote in

person due to the pandemic . . .

They further requested temporary and permanent injunctive relief prohibiting election

administrators across the State from:

(a) [d]enying any written or in-person absentee ballot request for the

August 2020 or November 2020 election on the basis of the applicant’s not

meeting one or more of the conditions enumerated in Tenn[essee] Code

Ann[otated section] 2-6-201;

(b) [u]nduly delaying the review, processing, or both of any

absentee-ballot request made or purporting to be made by, or lawfully on

behalf of, a registered Tennessee voter;

(c) [r]ejecting any absentee ballot cast in the August 2020 or

November 2020 election cycles on the basis of the voter’s not meeting one

or more of the conditions enumerated under Tenn[essee] Code Ann[otated

section] 2-6-201; [and]

(d) [f]ailing to timely process any absentee ballot timely received by

the deadlines provided under Tennessee Law.

By order filed May 12, 2020, the trial court set the Fisher plaintiffs’ request for a

temporary injunction for hearing on May 28, 2020, without oral testimony pursuant to

Davidson County Local Rule 19.04.

On May 15, 2020, plaintiffs, Benjamin William Lay, Carole Joy Greenawalt,7 and

Sophia Luangrath, filed a complaint seeking injunctive and declaratory relief against

defendants, Mark Goins, Tre Hargett, and William Lee, each in his official capacity for

7

The trial court held that plaintiff Carole Joy Greenawalt lacks standing, and that holding is not

before the Court on appeal.

-9-

the State of Tennessee.8 On May 22, 2020, the Lay plaintiffs filed an amended

complaint.

The Lay plaintiffs alleged that Mr. Lay is a cancer survivor who suffers from a

compromised immune system and that his wife, Carole Joy Greenawalt, also is

immunosuppressed. The Lay plaintiffs further alleged that “Mr. Lay has been self-

quarantining at home with his wife and has been practicing the social distancing

measures prescribed by the CDC.” The Lay plaintiffs alleged that Mr. Lay is registered

to vote in Tennessee and has previously voted in elections in Tennessee. “Due to his

wife’s immunocompromised status and his cancer history, however, he cannot vote safely

in person during the COVID-19 pandemic.” The Lay plaintiffs alleged that the State’s

construction of the statutory eligibility requirements prevents Mr. Lay from voting

absentee by mail. The Lay plaintiffs alleged that Ms. Luangrath is a twenty-one-year-old

resident of Rutherford County, Tennessee, that she voted in the 2018 midterm election,

and that the State’s construction of the statutory eligibility requirements prevents Ms.

Luangrath from voting absentee by mail.

The Lay plaintiffs alleged that the State had construed the statutory eligibility

requirements for absentee voting by mail to mean that fear of contracting the coronavirus

does not constitute illness and, therefore, does not meet the criteria to vote absentee ballot

by mail in Tennessee. Instead, the Lay plaintiffs alleged that the State had construed the

statute to mean that only individuals who have quarantined because of a potential

exposure to COVID-19 or who have tested positive for COVID-19 are permitted to vote

absentee by mail as a person who is ill. The Lay plaintiffs alleged that this construction

is “plainly unreasonable.” The Lay plaintiffs further alleged that the State’s construction

and enforcement of the statutory eligibility requirements for absentee voting by mail

“severely burdens the fundamental right to vote of all eligible voters who are practicing

[s]ocial [d]istancing [m]easures and/or are self-quarantining to prevent exposure to

COVID-19,” that this construction “will likely disenfranchise tens of thousands of

Tennesseans,” and that this construction will “deny the fundamental right to vote

guaranteed by the Tennessee Constitution.” The Lay plaintiffs asserted violations of the

fundamental right to vote under article IV, section 1 and article I, section 5 of the

Tennessee Constitution.

The Lay plaintiffs asked the court to declare that the State’s construction and

enforcement of the statutory eligibility requirements for absentee voting by mail as stated

in Tennessee Code Annotated section 2-6-201 violates the fundamental right to vote

under article IV, section 1 of the Tennessee Constitution and the fundamental right to

8

The defendants in both cases will hereinafter be referred to jointly as “the State.”

- 10 -

vote under article I, section 5 of the Constitution “(i) for the 2020 election calendar, (ii)

while the State’s ongoing ‘state of emergency’ is in effect, or (iii) while the CDC is

advising individuals to engage in any of its recommended [s]ocial [d]istancing

[m]easures.” The Lay plaintiffs further asked the court to issue preliminary and

permanent injunctions prohibiting the State from enforcing statutory eligibility

requirements for absentee voting by mail as stated in Tennessee Code Annotated section

2-6-201:

to prevent:

• any eligible voter, regardless of age and physical condition;

• any eligible voter who lives with an individual who is at a higher

risk of complications should they contract COVID-19; and/or

• any eligible voter who is at a higher risk of complications should

they contract COVID-19

to request, receive, and have counted an absentee ballot by mail at least for the

2020 election calendar and until the State’s ongoing “state of emergency” is lifted

and the CDC no longer advises individuals to engage in any of its recommended

[s]ocial [d]istancing [m]easures . . .

On May 22, 2020, the Lay plaintiffs filed a motion for a temporary injunction

pursuant to Rule 65.04 of the Tennessee Rules of Civil Procedure, supported by

declarations. On May 27, 2020, the trial court set the motion for hearing on June 3, 2020,

without oral testimony pursuant to Davidson County Local Rule 19.04. The trial court

reset the hearing in the Fisher plaintiffs’ case for that same date. The State filed

responses in both cases supported by declarations. The plaintiffs filed replies supported

by supplemental declarations, and the State filed sur-replies supported by additional

declarations.

On June 4, 2020, following the hearing, the trial court filed its “Memorandum and

Order Granting Temporary Injunction to Allow Any Tennessee Registered Voter to

Apply for a Ballot to Vote by Mail Due to COVID-19.” The trial court characterized the

issue before it as “whether, in this time of the pandemic, the States’ [sic] construction and

application of Tennessee law constitutes an unreasonable and discriminatory burden on

the fundamental right to vote vigorously guaranteed by the Tennessee Constitution.” The

court characterized the relief sought by the plaintiffs on their motion for a temporary

injunction as “seek[ing] for the Court to enjoin the States̕ [sic] restrictive application of

the law and for a mandate that the State must provide the Plaintiffs access to voting by

mail.” The trial court then summarized its holding as follows:

After studying the evidence and the law, and considering argument

of [c]ounsel, the [c]ourt finds that the evidence does not support the State’s

- 11 -

claims that it is impossible for it to provide expanded access to voting by

mail. Respectfully, the evidence is that the assumptions the State has

employed in its fiscal and resource calculations are oddly skewed and not in

accordance with the methodology of its own expert and industry standards.

When, however, normal industry-recognized assumptions are used, the

evidence establishes that the resources are there to provide temporary

expanded access to voting by mail in Tennessee during the pandemic if the

State provides the leadership and motivation as other states have done. As

to voter fraud, the State’s own expert debunks and rejects that as a reason

for not expanding access to voting by mail.

From this evidence and upon using the legal standard of Anderson-

Burdick, the Court concludes that the State’s restrictive interpretation and

application of Tennessee’s voting by mail law (Tennessee Code Annotated

section 2-6-201), during the unique circumstances of the pandemic,

constitutes an unreasonable burden on the fundamental right to vote

guaranteed by the Tennessee Constitution. Accordingly[,] the Plaintiffs are

entitled to issuance of a temporary injunction.

(Footnote omitted). The trial court granted the plaintiffs’ motion for a temporary

injunction and ordered as follows:

[T]he Plaintiffs’ motion for a temporary injunction is granted to the extent

that, until further order of the [c]ourt, the Defendants are enjoined from:

— enforcing their current construction of the ‟excuse

requirement” for absentee voting stated in Tennessee Code

Annotated section 2-6-201(5)(C) and (D), and

are mandated to:

— provide any eligible Tennessee voter, who applies to vote by

mail in order to avoid transmission or contraction of COVID-19,

an absentee ballot in upcoming elections during the pendency of

pandemic circumstances; and

— implement the construction and application of Tennessee

Code Annotated section 2-6-201(5)(C) and (D) that any qualified

voter who determines it is impossible or unreasonable to vote in-

person at a polling place due to the COVID-19 situation shall be

eligible to check the box on the absentee ballot application that,

‟the person is hospitalized, ill or physically disabled and because

- 12 -

of such condition, the person is unable to appear at the person’s

polling place on election day; or the person is a caretaker of a

hospitalized, ill or physically disabled person,” and have that

absentee voting request duly processed by the State in

accordance with Tennessee law.

In addition[,] it is ORDERED that the Defendants are mandated to:

— prominently post on their websites and disseminate to County

Election Officials that voters who do not wish to vote in-person

due to the COVID-19 virus situation are eligible to request an

absentee ballot by mail or that such voters still have the option to

vote in-person during Early voting or on Election Day.

Not ordered herein is a requirement that the State must automatically

mail absentee ballots to all Tennessee registered voters, a practice being

implemented in some states before and in response to the pandemic.

(Footnotes omitted). As the trial court explained:

[t]he difference is that the injunction issued above keeps in place and tracks

the requirement of Tennessee law that to obtain a mail-in ballot, a voter

must first apply for one so that it is only voters who apply to vote by mail

that the State must print and mail absentee ballots to as the applications

come in.

On June 5, 2020, the State filed a motion for an interlocutory appeal pursuant to

Rule 9 of the Tennessee Rules of Appellate Procedure and a motion for a stay pending

appeal pursuant to Rules 62.03 and 62.06 of the Tennessee Rules of Civil Procedure and

requested expedited review. By order filed June 10, 2020, the trial court granted the

State’s motion for an interlocutory appeal on the issue of “whether the June 4, 2020

Temporary Injunction is valid and shall remain in effect.” The trial court denied the

State’s motion for a stay pending appeal.

On June 12, 2020, the State filed in the Court of Appeals an application for

permission to appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure

and requested expedited review.9 The single issue raised in the application was “whether

the temporary injunction was properly issued.” The State simultaneously filed in the

9

The State included its merits brief within its application.

- 13 -

Court of Appeals a motion seeking review of the trial court’s denial of a stay pursuant to

Rule 7 of the Tennessee Rules of Appellate Procedure and/or for the entry of a stay

pending appeal pursuant to Rule 62.08 of the Tennessee Rules of Civil Procedure and

requested expedited consideration of those motions.

Also on June 12, 2020, the State filed in this Court a motion to assume jurisdiction

of the appeal pursuant to Tennessee Code Annotated section 16-3-201(d)(1) and (2) and

Rule 48 of the Rules of the Tennessee Supreme Court. By order filed June 24, 2020, this

Court granted the State’s motion to assume jurisdiction and its application for permission

to appeal and set an expedited briefing schedule. By separate order entered that same

day, the Court denied the State’s motion for a stay pending appeal. By order filed

July 24, 2020, this Court set the cases for consolidated oral argument on July 30, 2020,

and oral argument was held on that date.

II. Analysis

A. Scope of Review

This is an interlocutory appeal. The Court’s review is limited to those questions

clearly within the scope of the issue certified for interlocutory appeal. Funk v. Scripps

Media, Inc., 570 S.W.3d 205, 210 (Tenn. 2019). As noted, the trial court and the State

broadly stated the issue as the propriety of the trial court’s entry of the temporary

injunction. In their reply brief, the State restated the issue more narrowly: “The only

question before this Court is whether the Tennessee Constitution requires the State to

allow all Tennessee voters to vote by mail in the August and November elections.”

The parties acknowledge, however, that there are two distinct categories of

plaintiffs and persons within the scope of the trial court’s temporary injunction: 1)

persons with special vulnerability to COVID-19 and persons who are caretakers for

persons with special vulnerability to COVID-19; and 2) persons who neither have special

vulnerability to COVID-19 nor are caretakers for persons with special vulnerability to

COVID-19. At oral argument before this Court, the State agreed that persons in the first

category are eligible to vote absentee by mail under the provisions of Tennessee Code

Annotated section 2-6-201(5)(C) and (D), but the State continues to contend that persons

in the second category are not eligible to vote absentee by mail. The Court, therefore,

addresses these two categories separately.

B. Plaintiffs and Persons with Special Vulnerability to COVID-19

As noted, the State has agreed that those plaintiffs and persons with special

vulnerability to COVID-19 or who are caretakers of persons with special vulnerability to

COVID 19 are eligible to vote absentee by mail pursuant to the statutory eligibility

- 14 -

requirements for absentee voting by mail set forth in Tennessee Code Annotated section

2-6-201(5)(C) and (D). The State also has agreed that it has a responsibility to provide

instructions to local election officials and to voters that are consistent with its expressed

interpretation of Section 2-6-201(5)(C) and (D). We accept the State’s concessions.

State v. Franklin, 308 S.W.3d 799, 811 (Tenn. 2010) (citing Barron v. Tenn. Dep’t of

Human Serv., 184 S.W.3d 219, 223 (Tenn. 2006)). We have no reason to doubt that the

State will faithfully discharge its duty to implement the absentee voting statutes and will

permit such persons to vote absentee by mail pursuant to the requirements, processes, and

procedures set forth in those statutes. West v. Schofield, 460 S.W.3d 113, 131 (Tenn.

2015) (stating that public officials are “presumed to discharge their duties in good faith

and in accordance with the law” (citations omitted)). We instruct the State to ensure that

appropriate guidance is provided to Tennessee registered voters with respect to the

eligibility requirements of such persons to vote absentee by mail in advance of the

November 2020 election.10 Accordingly, we hold that as to plaintiffs and persons with

special vulnerability to COVID-19 or who are caretakers of persons with special

vulnerability to COVID 19, injunctive relief is not necessary.

C. Plaintiffs and Persons without Special Vulnerability to COVID-19

1. Temporary Injunction and Standard of Review

The interlocutory appeal in this case is from the trial court’s grant of a temporary

injunction. Rule 65.04(2) of the Tennessee Rules of Civil Procedure provides:

[a] temporary injunction may be granted during the pendency of an action if

it is clearly shown by verified complaint, affidavit or other evidence that

the movant’s rights are being or will be violated by an adverse party and the

movant will suffer immediate and irreparable injury, loss or damage

10

Such guidance may include that provided by the CDC with respect to underlying medical and

health conditions which place individuals at heightened risk for COVID-19. In addition, the guidance

should inform voters that, as set forth in the State’s COVID-19 Contingency Plan, for those who request a

mail-in ballot on the basis that the voter is either ill or the caretaker of someone who is ill, “[a]

physician’s statement is not required to allow these voters to vote absentee by-mail.” As the State

acknowledged during oral argument, these statutory provisions operate essentially as an “honor system”

in that the voter makes his or her own determination as to being “ill” or the caretaker for someone who is

“ill,” based on the voter’s own knowledge.

- 15 -

pending a final judgment in the action, or that the acts or omissions of the

adverse party will tend to render such final judgment ineffectual.

Tenn. R. Civ. Pro. 65.04(2) (2020). Like the federal courts, Tennessee trial courts

consider four factors in determining whether to issue a temporary injunction: “(1) the

threat of irreparable harm to the plaintiff if the injunction is not granted; (2) the balance

between this harm and the injury that granting the injunction would inflict on defendant;

(3) the probability that plaintiff will succeed on the merits; and (4) the public interest.”

Moody v. Hutchison, 247 S.W.3d 187, 199–200 (Tenn. Ct. App. 2007) (citing Mosby v.

Colson, No. W2006-00490-COA-R3-CV, 2006 WL 2354763 (Tenn. Ct. App. Aug. 14,

2006)), perm. app. denied (Tenn. Mar. 3, 2008); Obama for America v. Husted, 697 F.3d

423, 428 (6th Cir. 2012). Where, as here, the temporary injunction is sought on the basis

of an alleged constitutional violation, the third factor—likelihood of success on the

merits—often is the determinative factor. Obama for America, 697 F.3d at 436 (citing

Jones v. Caruso, 569 F.3d 258, 265 (6th Cir. 2009)). A plaintiff’s failure to show

likelihood of success on the merits is usually fatal. Lyons v. City of Columbus, No. 2:20-

cv-3070, 2020 WL 3396319, at *2 (S.D. Ohio June 19, 2020) (citations omitted).

In these cases, the temporary injunction sought and ordered was mandatory, as

opposed to prohibitory. A mandatory injunction is one which alters the status quo and

orders the defendant to take action to remedy the alleged wrong. See Lawrence A.

Pivnick, 2 Tenn. Cir. Ct. Prac. § 31:2 (Dec. 2019 update). This Court has long

recognized the extraordinary nature of mandatory injunctions and has cautioned that this

relief should be granted only in exceptional circumstances. Cole v. Dych, 535 S.W.2d

315, 322 (Tenn. 1976); King v. Elrod, 268 S.W.2d 103, 106 (Tenn. 1954).

The trial court’s decision to grant the plaintiffs’ request for a temporary injunction

is discretionary and is reviewed under an abuse of discretion standard. Gentry v.

McCain, 329 S.W.3d 786, 793 (Tenn. Ct. App. 2010), perm. app. denied (Tenn. Oct. 18,

2010); Hughes v. Tenn. Dep’t of Corr., No. M2016-02212-COA-R3-CV, 2017 WL

4125378, at *2 (Tenn. Ct. App. Sept. 18, 2017); Curb Records, Inc. v. McGraw, No.

M2011-02762-COA-R3-CV, 2012 WL 4377817, at *3 (Tenn. Ct. App. Sept. 25, 2012),

perm. app. denied (Tenn. Feb. 12, 2013). “A court abuses its discretion when it causes an

injustice to the party challenging the decision by (1) applying an incorrect legal standard,

(2) reaching an illogical or unreasonable decision, or (3) basing its decision on a clearly

erroneous assessment of the evidence.” Harmon v. Hickman Cmty. Healthcare Servs.,

Inc., 594 S.W.3d 297, 305–06 (Tenn. 2020) (citations omitted).

Whether the trial court applied an incorrect legal standard is a question of law and

is reviewed de novo with no presumption of correctness. Funk, 570 S.W.3d at 211 (citing

Wallace v. Metro. Gov’t of Nashville, 546 S.W.3d 47, 52 (Tenn. 2018)). Questions of

fact normally are reviewed de novo but with a presumption of correctness unless the

- 16 -

evidence preponderates otherwise. See Tenn. R. App. P. 13(d) (2020); Hughes v. Tenn.

Bd. of Prob. and Parole, 514 S.W.3d 707, 712 (Tenn. 2017). In this appeal, however, all

evidence was documentary. There was no live testimony; instead, there were only

declarations. Accordingly, we afford no deference and no presumption of correctness to

the trial court’s findings of fact. See Kelly v. Kelly, 445 S.W.3d 685, 693 (Tenn. 2014)

(“When findings are based on documentary evidence, an appellate court’s ability to

assess credibility and to weigh the evidence is the same as the trial court’s. Accordingly,

when factual findings are based on documentary evidence, an appellate court may draw

its own conclusions with regard to the weight and credibility to be afforded that

documentary evidence.” (Citation omitted)); Wells v. Tenn. Bd. of Regents, 9 S.W.3d

779, 783-84 (Tenn. 1999) (citing Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452,

456 (Tenn. 1988)).

2. Likelihood of Success on the Merits

a. Standard of Review

Whether a plaintiff is likely to succeed on the merits for purposes of a temporary

injunction is a question of law and is reviewed de novo. See Obama for America, 697

F.3d at 428. The underlying claim as to which the Court must determine the likelihood of

success on the merits is the constitutionality of the State’s construction and application of

Tennessee Code Annotated section 2-6-201(5)(C) and (D), which prescribes the

eligibility criteria for voting absentee by mail. “When analyzing the constitutionality of a

statute, we review the issue de novo with no presumption of correctness to the lower

court’s legal conclusions.” Tenn. Bd. of Prob. and Parole, 514 S.W.3d at 712 (citing

Waters v. Farr, 291 S.W.3d 873, 882 (Tenn. 2009)).

b. Standing

As part of its argument to the trial court on the temporary injunction factor of

likelihood of success on the merits, the State raised a challenge to the plaintiffs’ standing.

This argument was also included in the State’s initial brief in its Rule 9 application to the

Court of Appeals. It is not entirely clear from the State’s supplemental brief and

supplemental reply brief filed in this Court whether it continues to assert a challenge to

plaintiffs’ standing. We nonetheless preliminarily address standing.

The question of standing is one that ordinarily precedes a consideration of the

merits of a claim. City of Memphis v. Hargett, 414 S.W.3d 88, 96 (Tenn. 2013). “The

proper focus of a determination of standing is a party’s right to bring a cause of action,

and the likelihood of success on the merits does not factor into such an inquiry.” Id. at 97

(citing ACLU of Tenn. v. Darnell, 195 S.W.3d 612, 620 (Tenn. 2006)); Wood v. Metro.

- 17 -

Nashville & Davidson Cnty. Gov’t, 196 S.W.3d 152, 158 (Tenn. Ct. App. 2005) (citing

Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc.,

454 U.S. 464, 484 (1982); Petty v. Daimler/Chrysler Corp., 91 S.W.3d 765, 767 (Tenn.

Ct. App. 2002)), perm. app. denied (Tenn. June 26, 2006); Mayhew v. Wilder, 46 S.W.3d

760, 767 (Tenn. Ct. App. 2001), perm. app. denied (Tenn. Mar. 19, 2001). That being

said, a party’s standing may turn on the nature of the claim and requires a determination

of whether a plaintiff is entitled to an adjudication of the particular claim. City of

Memphis, 414 S.W.3d at 97 (citation omitted).

The State challenged the plaintiffs’ constitutional standing. Constitutional

standing is a fundamental requirement of a justiciable controversy. Id. at 98. To

establish constitutional standing, a plaintiff must satisfy three elements: 1) a distinct and

palpable injury; that is, an injury that is not conjectural, hypothetical, or predicated upon

an interest that a litigant shares in common with the general public; 2) a causal

connection between the alleged injury and the challenged conduct; and 3) the injury must

be capable of being redressed by a favorable decision of the court. Id. (citing Darnell,

195 S.W.3d at 620). As this Court has explained these three elements:

First, a party must show an injury that is “distinct and palpable”; injuries

that are conjectural, hypothetical, or predicated upon an interest that a

litigant shares in common with the general citizenry are insufficient in this

regard. Second, a party must demonstrate a causal connection between the

alleged injury and the challenged conduct. While the causation element is

not onerous, it does require a showing that the injury to a plaintiff is “fairly

traceable” to the conduct of the adverse party. The third and final element

is that the injury must be capable of being redressed by a favorable decision

of the court.

Id. (citations omitted). In this appeal, the proper focus of the standing inquiry is on the

asserted infringement to the right to vote and the alleged facts regarding that asserted

infringement and resulting injury to the plaintiffs. See id. at 99-100. We find that the

plaintiffs have asserted a sufficient infringement and have alleged sufficient facts

regarding an injury to establish constitutional standing. As in City of Memphis, it

appears here too that the State’s arguments actually “pertain to the merits of the claim of

undue burden, rather than the issue of standing.” Id. at 100 (citing Darnell, 195 S.W.3d

at 620).

c. Nature of Constitutional Challenge and Burden

A constitutional challenge to a statute may be either facial or as-applied. In a

facial challenge, the plaintiff contends that there are no circumstances under which the

statute, as written, may be found valid. City of Memphis, 414 S.W.3d at 103 (citing

- 18 -

Davis-Kidd Booksellers, Inc. v. McWherter, 866 S.W.2d 520, 525 (Tenn. 1993)); Tenn.

Bd. of Prob. and Parole, 514 S.W.3d at 712. In contrast, in an as-applied challenge, the

plaintiff contends that the statute is unconstitutional as construed and applied in actual

practice against the plaintiff under the facts and circumstances of the particular case, not

under some set of hypothetical circumstances. City of Memphis, 414 S.W.3d at 107.

Initially, it appeared that the parties disputed whether the plaintiffs’ challenge to

the constitutionality of Tennessee Code Annotated section 2-6-201(5)(C) and (D) was

facial or as-applied. In truth, the dispute now appears more about the available scope of

any injunctive remedy; that is, whether the trial court erred in issuing an injunction that

applied to persons beyond the named plaintiffs. All parties now appear to recognize that

the plaintiffs’ constitutional claim is a hybrid; it has characteristics of both an as-applied

challenge and a facial challenge. See Green Party of Tenn. v. Hargett, 791 F.3d 684,

691-92 (6th Cir. 2015) (“‘[T]he distinction between facial and as-applied challenges is

not so well defined that it has some automatic effect or that it must always control the

pleadings and disposition in every case involving a constitutional challenge.’ In fact, a

claim can have characteristics of as-applied and facial challenges: it can challenge more

than just the plaintiff’s particular case without seeking to strike the law in all its

applications.” (Citations omitted)). The plaintiffs challenge the State’s construction and

application of this statute to them and others like them under the specific circumstances

of the COVID-19 pandemic. The hybrid nature of the plaintiffs’ constitutional challenge

does not limit the scope of the available injunctive relief to only the named plaintiffs.

Had the plaintiffs asserted only an as-applied challenge, the court still would have been

permitted to award relief that extended beyond the named plaintiffs. See Whole

Woman’s Health v. Hellerstedt, 136 S.Ct. 2292, 2307 (2016).

The hybrid nature of the plaintiffs’ constitutional challenge, however, does impact

the burden placed upon them to establish their claim and, concomitantly, their likelihood

of success on the merits of that claim. To the extent that the plaintiffs’ claims extend

beyond their circumstances, they must satisfy the standards for a facial challenge. Green

Party of Tenn., 791 F.3d at 692 (quoting John Doe No. 1 v. Reed, 561 U.S. 186, 194

(2010)).

This Court recently reiterated the general burden faced by a plaintiff mounting a

constitutional challenge to a statute:

“In evaluating the constitutionality of a statute, we begin with the

presumption that an act of the General Assembly is constitutional.” “[I]n

reviewing [a] statute for a possible constitutional infirmity, we are required

to indulge every presumption and resolve every doubt in favor of the

constitutionality of the statute.”

- 19 -

“The Court must uphold the constitutionality of a statute wherever

possible[.]” “[T]he Court must be controlled by the fact that our

Legislature may enact any law which our Constitution does not prohibit,

and the Courts of this State cannot strike down one of its statutes unless it

clearly appears that such statute does contravene some provision of the

Constitution.”

Willeford v. Klepper, 597 S.W.3d 454, 465 (Tenn. 2020) (citations omitted). That

burden is even greater when the challenge is facial. Waters, 291 S.W.3d at 882 (citing

Gallaher v. Elam, 104 S.W.3d 455, 459 (Tenn. 2003)). A facial challenge to a statute is

“‘the most difficult challenge to mount successfully since the challenger must establish

that no set of circumstances exist under which the Act would be valid.’” Lynch v. City of

Jellico, 205 S.W.3d 384, 390 (Tenn. 2006) (citations omitted). Plaintiffs asserting a

facial challenge, therefore, undertake an especially heavy legal burden. Id.

d. Analytical Framework for Constitutional Review

The plaintiffs contend that the State’s construction and application of the statutory

criteria for absentee voting by mail under Tennessee Code Annotated section 2-6-

201(5)(C) and (D) constitute an unconstitutional burden on their fundamental right to

vote guaranteed by article I, section 5 and article IV, section 1 of the Tennessee

Constitution, which provide in pertinent part:

Tenn. Const., art. 1, § 5

§ 5. Elections and suffrage

The elections shall be free and equal, and the right of suffrage, as

hereinafter declared, shall never be denied to any person entitled thereto,

except upon conviction by a jury of some infamous crime, previously

ascertained and declared by law, and judgment thereon by court of

competent jurisdiction.

Tenn. Const., art. 4, § 1

§ 1. Qualifications; precincts; military duty

Every person, being eighteen years of age, being a citizen of the United

States, being a resident of the State for a period of time as prescribed by the

General Assembly, and being duly registered in the county of residence for

a period of time prior to the day of any election as prescribed by the

General Assembly, shall be entitled to vote in all federal, state, and local

- 20 -

elections held in the county or district in which such person resides. All

such requirements shall be equal and uniform across the state, and there

shall be no other qualification attached to the right of suffrage.

The General Assembly shall have power to enact laws requiring voters to

vote in the election precincts in which they may reside, and laws to secure

the freedom of elections and the purity of the ballot box.

This Court has not definitively determined the appropriate analytical framework

by which to evaluate claims alleging violations of the Tennessee constitutional right to

vote. In City of Memphis, we acknowledged this open question:

This Court has not previously addressed the standard of review applicable

to claims arising under article I, section 5 of the Tennessee Constitution.

The Court of Appeals determined that laws burdening the right to vote

“must be subjected to strict scrutiny.” While the Plaintiffs challenge the

Court of Appeals’ analysis of their claims, they maintain that strict scrutiny

is the proper standard of review. The Defendants agree, conceding that

“the Court of Appeals correctly applied the strict scrutiny standard of

review.” Notably, however, the United States Supreme Court has rejected

the notion that strict scrutiny applies to every statute imposing a burden on

the right to vote under the United States Constitution. Instead, addressing

claims arising under the First and Fourteenth Amendments, the Court has

adopted a “more flexible standard,” pursuant to which a showing of

important governmental regulatory interests may justify lesser restrictions

on the right to vote, whereas strict scrutiny is reserved for laws that impose

“‘severe’ restrictions.” Thus, there is a potential question as to whether this

Court should adopt a more stringent standard for voting rights challenges

under article I, section 5 than is applied under the United States

Constitution.

414 S.W.3d at 102 (citations omitted). Because the parties in City of Memphis had

agreed that strict scrutiny review applied, however, we left for another day the

determination of the appropriate analytical framework. Id.

Here, in contrast to City of Memphis, the plaintiffs and the State disagree as to the

appropriate standard, with the plaintiffs urging strict scrutiny review and the State urging

rational basis review.

Under the strict scrutiny standard urged by the plaintiffs, the State “must

demonstrate that any burden on the right to vote is justified by a compelling state

interest.” City of Memphis, 414 S.W.3d at 102 (citation omitted). The State must further

- 21 -

demonstrate that the statute and its application of the statute are narrowly tailored to

achieve a compelling state interest. Id. (citation omitted). The State’s application of a

statute cannot qualify as narrowly tailored if there are alternative means of achieving the

governmental interest that would be less intrusive and comparably effective. Id. at 103

(citation omitted).

In contrast, under the rational basis standard of review urged by the State, a statute

will survive a constitutional challenge if any reasonably conceivable state of facts could

provide a rational basis for its application of the statute. See Armour v. City of

Indianapolis, 566 U.S. 673, 681 (2012).

The trial court resolved this dispute about the appropriate standard of review for

evaluating the plaintiffs’ constitutional claim by employing the so-called Anderson-

Burdick analytical framework.11

The Sixth Circuit Court of Appeals recently described the Anderson-Burdick

framework in the context of a voting rights case arising as a result of the COVID-19

pandemic:

Under Anderson-Burdick, we first look to the burden the State’s

regulation imposes on the right to vote. When States impose “‘reasonable

nondiscriminatory restrictions’” on the right to vote, courts apply rational

basis review and “‘the State’s important regulatory interests are generally

sufficient to justify’ the restrictions.” But when States impose severe

restrictions on the right to vote, such as poll taxes or limiting access to the

ballot, strict scrutiny applies. It is when cases fall between these two

extremes that the Anderson-Burdick framework departs from the traditional

tiers of scrutiny and creates its own test.

For these intermediate cases, where the burden on the right to vote is

moderate, we must weigh that burden against “‘the precise interests put

forward by the State as justifications for the burden imposed by its rule,’

taking into consideration ‘the extent to which those interests make it

necessary to burden the plaintiff's rights.’” Only where the State’s interests

11

The Anderson-Burdick framework derives its name from the analysis in two United States

Supreme Court cases: Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504 U.S.

428 (1992). Somewhat confusingly, this intermediate standard is itself sometimes referred to as the

Anderson-Burdick standard. For the sake of clarity, we will refer to the analytical framework as the

“Anderson-Burdick framework” and the intermediate standard of constitutional review thereunder as the

“intermediate standard.”

- 22 -

outweigh the burden on the plaintiff’s right to vote do voting restrictions

not offend the Equal Protection Clause. While this standard is flexible, we

must ultimately “make the ‘hard judgment’ that our adversary system

demands.”

Mays v. LaRose, 951 F.3d 775, 784 (6th Cir. 2020) (citations omitted); see also

Thompson v. DeWine, 959 F.3d 804, 808-09 (6th Cir. 2020); Obama for America, 697

F.3d at 429-30.

While the plaintiffs still suggest that the Court could undertake in these cases to

decide the question left open in City of Memphis, they also acknowledge that we need

not do so.12 We agree. At this juncture, in an interlocutory appeal from the trial court’s

entry of a temporary injunction, we will assume without deciding that the Anderson-

Burdick analytical framework applies to the plaintiffs’ claims.

e. Application of the Anderson-Burdick Framework

(1) Burden on Plaintiffs

Perhaps not surprisingly, the parties do not agree on the appropriate level of

constitutional review based on the application of the Anderson-Burdick analytical

framework. The plaintiffs appear to accept that the intermediate level of review applied

by the trial court may well be appropriate. The State, however, contends that under the

Anderson-Burdick framework, only rational basis review is warranted.13 We disagree

with the State on this point.

In order to determine the appropriate standard of constitutional review under the

Anderson-Burdick framework, we first must determine the extent of the burden on the

right to vote. The State’s contention that only rational basis review is appropriate is

founded on its view that the plaintiffs’ constitutional challenge addresses only the

“privilege” to vote absentee and not the fundamental right to vote.

12

In their brief within their Rule 9 application in the Court of Appeals, the State in fact applied

the Anderson-Burdick analytical framework.

13

This argument is separate and apart from the State’s primary argument that the rational basis

standard, as opposed to the Anderson-Burdick framework, should be applied to the Plaintiffs’ claims.

Again, we are assuming for purposes of this appeal that the Anderson-Burdick framework applies.

- 23 -

It is beyond question that the right to vote is a “precious” and “fundamental” right.

Harper v. Va. State Bd. of Elections, 383 U.S. 663, 670 (1966). Even the most basic of

other rights are “illusory if the right to vote is undermined.” Wesberry v. Sanders, 376

U.S. 1, 17 (1964). This fundamental right is expressly guaranteed under the Tennessee

Constitution. See Tenn. Const. art. I, § 5; art. IV, § 1.

The State correctly points out, however, that the right to vote in any particular

manner is not absolute. See Burdick v. Takushi, 504 U.S. 428, 433 (1992); Mays, 951

F.3d at 783. The Tennessee Constitution also expressly grants the Legislature the

authority to promulgate laws to “secure the freedom of elections and the purity of the

ballot box.” Tenn. Const. art. IV, § 1. We previously have noted that pursuant to this

express grant, “‘[t]he authority of the Tennessee Legislature to control the conduct of

elections held in this State is manifest.’” City of Memphis, 414 S.W.3d at 103 (citation

omitted). The Legislature has exercised this authority and has provided by statute several

alternative methods of voting. These include in-person voting, Tenn. Code Ann. §§ 2-3-

101 et seq.; in-person early voting, Tenn. Code Ann. §§ 2-6-101 et seq.; and absentee

voting by mail, Tenn. Code Ann. §§ 2-6-201 et seq.14 The statutes make clear that in-

person voting is the default and favored method of voting. Absentee voting by mail, like

in-person early voting, is an exception, and absentee voting is limited in its availability to

only certain categories of qualified registered voters. See Tenn. Code Ann. § 2-6-101(a)

(2014) (“The purpose of this chapter is to provide a means for qualified voters to cast

their votes when they would otherwise be unable to vote”); Id. § 2-6-201 (setting forth

the limited categories of registered voters eligible to vote absentee by mail). This has led

the Court in the past to refer to voting absentee by mail as a “privilege.” Hilliard v. Park,

370 S.W.2d 829, 833–34 (Tenn. 1963), overruled in part on other grounds by Southall v.

Billings, 375 S.W.2d 844, 852 (Tenn. 1963)). The State places great reliance on this

characterization of absentee voting by mail in support of its argument that the plaintiffs’

constitutional challenge seeks to vindicate only a privilege to vote absentee by mail and

not the fundamental right to vote, such that only rational basis review is warranted in

these cases.

The State also places great reliance on the decision of the United States Supreme

Court in McDonald v. Bd. of Election Comm’rs of Chicago, 89 S.Ct. 1404, 1408 (1969).

In McDonald, the Court addressed a federal constitutional challenge to Illinois’ absentee

voting statute. In determining that the appropriate level of constitutional review was

rational basis review, the Court concluded as follows:

14

These references to Tennessee’s voting laws are to the current version of the Tennessee Code.

- 24 -

[T]here is nothing in the record to indicate that the Illinois statutory scheme

has an impact on appellants’ ability to exercise the fundamental right to

vote. It is thus not the right to vote that is at stake here but a claimed right

to receive absentee ballots. Despite appellants’ claim to the contrary, the

absentee statutes, which are designed to make voting more available to

some groups who cannot easily get to the polls, do not themselves deny

appellants the exercise of the franchise.

Id.

The State’s reliance on this Court’s prior characterization and on McDonald,

however, is misplaced. Characterizing absentee voting by mail as a “privilege” begs the

question of whether, under some circumstances, limitations on this lawful method of

voting can amount to a burden on the right to vote itself. The answer to that question

must be yes. If it were not, even when the right to vote is unavailable through any other

means, deprivation of absentee voting by mail would nevertheless be deemed not to

burden the fundamental right to vote itself.

We find support for this view in a recent decision of the United States District

Court for South Carolina. In Thomas v. Andino, No. 3:20-cv-01552-JMC & No. 3:20-

cv-01730-JMC, 2020 WL 2617329 (D. S.C. May 25, 2020), the plaintiffs challenged

certain South Carolina absentee ballot voting laws as violating the fundamental right to

vote under the First and Fourteenth Amendments to the United States Constitution due to

the COVID-19 pandemic. Among the laws the plaintiffs challenged, and as to which

they sought preliminary injunctive relief “due to alleged vulnerabilities to COVID-19,”

was that setting forth witness requirements. Id. at *1.15 The court applied the Anderson-

Burdick analytical framework in determining the appropriate level of constitutional

review for purposes of evaluating the plaintiffs’ likelihood of success on the merits. Id.

at *17. In so doing, the Thomas court was confronted with the same contention which

the State makes in this case; namely, that the plaintiffs’ constitutional challenge applied

only to a privilege and not a protected right and so was not entitled to constitutional

review. Id. (footnote omitted). The court rejected this contention:

Inherent in the rule is that the challenge only applies to protected rights.

Thomas/Middleton Plaintiffs and Defendants vigorously debate whether

absentee voting is a right or a privilege.

15

The plaintiffs originally also challenged and sought a preliminary injunction with respect to

South Carolina’s statutory eligibility requirements for absentee voting. That challenge, however, was

rendered moot by subsequent legislation. Id. at *8 n.10.

- 25 -

Defendants are correct that under South Carolina law, absentee voting is a

“privilege,” not a right to vote itself. However, while this court agrees that

the right to an absentee ballot is not guaranteed by the First Amendment,

that does not mean that absentee voting is per se unprotected under the First

Amendment.

Id. at **17–18 (footnote omitted) (citations omitted). The court went on to find that the

“privilege” to vote absentee “so intimately [a]ffects the fundamental right to vote” as to

require the court to determine that the plaintiffs’ challenge is to be examined under a

“normative constitutional rights framework.” Id. at *18; see also Obama for America,

697 F.3d at 430-31 (rejecting the state’s reliance on McDonald and noting that “Plaintiffs

did not need to show that they were legally prohibited from voting, but only that

‘burdened voters have few alternative means of access to the ballot’” (citation omitted));

Mays, 951 F.3d at 783 (“So while States can regulate elections, they must be careful not

to unduly burden the right to vote when doing so.”). In this time of an unprecedented

pandemic, we agree with this analysis and also will use normative constitutional analysis

to evaluate the plaintiffs’ constitutional challenge to statutes limiting access to absentee

voting by mail.

The category of plaintiffs at issue consists of persons who neither have special

vulnerability to COVID-19 nor are caretakers for persons with special vulnerability to

COVID-19. Even with no special vulnerability to COVID-19, it is understandable that

some voters in this category may wish to vote by mail. As emphasized by the State in the

recent Tennessee Attorney General’s Opinion, “the health effects of the disease can be

severe, including serious damage to the lungs and other internal organs, and death” and

because “there is currently no vaccine, cure, or proven effective treatment for COVID-19,

the best way to prevent illness is to avoid being exposed to the virus.” Op. Tenn. Att’y

Gen. No. 20-14 at **2–3 (July 24, 2020) (footnotes omitted) (citations omitted).

However, the risk to this category of voters is significantly less than the risk to

voters with special vulnerability to COVID-19 or voters who are caretakers for persons

with special vulnerability to COVID-19. “The hallmark of a severe burden is exclusion

or virtual exclusion” from voting. See Libertarian Party of Ky. v. Grimes, 835 F.3d 570,

574 (6th Cir. 2016). We cannot say that in-person voting is foreclosed for these

plaintiffs, or that they are excluded or virtually excluded from voting. The State’s Plan

for in-person voting includes detailed measures for their protection and the protection of

the poll workers, including social distancing, screening questions for poll workers before

entry into the polling places, plexiglass shields for check-in procedures, mandatory masks

and gloves for poll workers and recommended masks for voters, single use pens for

voters to use to sign poll books, single use styluses for voters to use to ensure touchless

voting, and frequent and regular sanitation of surfaces.

- 26 -

Having carefully reviewed the record in these cases, and upon consideration of the

hardships of the COVID-19 pandemic, the State’s response to the pandemic, Tennessee’s

current absentee ballot access laws, and the State’s measures thus far with respect to

voting in the upcoming August and November elections, we cannot say that the burden

on the right to vote of this category of plaintiffs is severe. Rather, the burden is best

characterized as moderate.16

(2) State’s Interests

Having determined that the burden on the right to vote is moderate, we now must

weigh that burden against the precise interests put forward by the State as justification for

the burden imposed, here the burden resulting from the statutory eligibility requirements

for absentee voting by mail set forth in Tennessee Code Annotated section 2-6-201(5)(C)

and (D), in the context of the COVID-19 pandemic. We must take into consideration the

extent to which those interests make it necessary to burden the plaintiffs’ rights.

The State contends that it has a compelling interest in the efficacy and integrity of

the election process and that the eligibility requirements for absentee voting by mail serve

those interests. Subsumed within these broader interests, the State identifies three

specific interests: 1) prevention of fraud; 2) fiscal responsibility; and, 3) feasibility.17

With respect to fraud, the State’s interest is recognized in the Tennessee

Constitution, in the election statutes, and in our prior decisions. See City of Memphis,

414 S.W.3d at 103–04. The Tennessee Constitution expressly empowers the Legislature

to enact laws to secure the freedom of elections and the purity of the ballot box. Tenn.

Const. art. IV, § 1. One of the stated purposes of the Tennessee election laws, in turn, is

to “regulate the conduct of elections by the people so that . . . [t]he freedom and purity of

the ballot are secured.” Tenn. Code Ann. § 2-1-102(1) (2014). Another of the stated

purposes of the election laws is to “[m]aximize participation by all citizens in the

electoral process[.]” Id. § 2-1-102(4). In furtherance of that purpose, the stated purpose

of the early absentee voting statutes is to “provide a means for qualified voters to cast

their votes when they would otherwise be unable to vote.” Id. § 2-6-101(a). However,

“[t]o prevent fraud in election, strict compliance with the provisions of [the absentee

voting statutes] is required.” Id. § 2-6-201(c). The Constitution and the statutes, thus,

16

With respect to the relevance of the COVID-19 pandemic to our constitutional analysis, see

Adams & Boyle, P.C. v. Slatery, 956 F.3d 913, 924–25 (6th Cir. 2020).

17

These latter two interests are interrelated, and we will address them together.

- 27 -

express a duality of purpose or interest on the part of the State, which includes the

prevention of fraud.

The trial court did not find the State’s evidence regarding the risk of fraud which

would result from an increase in absentee voting by mail persuasive. We tend to agree. 18

Our view of the evidence of the potential risk of fraud, however, is not particularly

germane to our evaluation of the State’s interest in preventing fraud. We previously have

rejected the notion that the State must demonstrate the existence of voter fraud before it

properly may undertake measures intended to prevent it. Specifically, we have stated that

the integrity of the election process empowers the state to enact laws

to prevent voter fraud before it occurs, rather than only allowing the state to

remedy fraud after it becomes a problem . . . . Because of the nature of the

state’s constitutionally mandated role in the election process, a showing of

harm is not a prerequisite to legislative action.

City of Memphis, 414 S.W.3d at 104. The Legislature may act prophylactically to

prevent fraud so long as it does not “overstep by infringing on qualified citizens’ right to

suffrage.” Id. See Little v. Reclaim Idaho, __S.Ct. __, 2020 WL 4360897 (Mem), at *2

(July 30, 2020) (Roberts, C.J., concurring) (recognizing that the State has a legitimate

interest in preventing fraud).

18

Here, Tennessee’s absentee mail-in voting procedures include robust fraud-prevention

measures. Absentee mail-in ballots are sent only to voters who make a written request on an application

that includes the applicant’s personal identifying information and his current address. Tenn. Code Ann. §

2-6-202(a) (2014 & Supp. 2019). The application notes that persons who have never voted before and

registered to vote by mail must vote in-person. Tenn. Code Ann. § 2-2-115(7)(A) (2014 & Supp. 2019).

A post card is sent to the address listed on the application, informing the applicant that the application has

been received and informing him when ballots will be mailed. If the application lists an address different

from that on his voter’s registration, or his registration is inactive, the applicant must go through the

special procedures for such circumstances. Tenn. Code Ann. § 2-6-202(d)(1). The applicant’s signature

is validated by comparison to the voter’s registration. Id. § 2-6-202(b), (d)(1). If the application is

accepted, the applicant is mailed an absentee ballot, a special envelope for the absentee ballot, and

another larger envelope addressed to the county election commission. Id. § 2-6-202(d)(1). In completing

the ballot, the voter must sign an affidavit under penalty of perjury. Tenn. Code Ann. § 2-6-202(e); § 2-6-

309 (2014). After the ballot is completed, it must be sealed inside the special ballot envelope, placed in

the larger outer envelope, and mailed to the election commission; it cannot be hand-delivered. Tenn.

Code Ann. § 2-6-202(e)(g). Once the ballot is received by the county election commission, the signature

on the outer envelope is validated by comparison to the signature on the voter’s registration. Id. § 2-6-

202(g). The election administrator must record the validation of the signature before the ballot may be

counted. Id.

- 28 -

With respect to the State’s interests in fiscal responsibility and feasibility, the trial

court likewise did not find the State’s evidence persuasive. Once again, we are

constrained by the Constitution’s delegation to the Legislature of the power to regulate

the conduct of our elections, which certainly includes within its scope the interest in

fiscal responsibility and efficient conduct of the elections.

The importance of the Constitution’s delegation cannot be overstated. The State

plainly has an interest in the statutory election scheme which the Legislature has enacted

pursuant to its constitutional authority. Bond v. Dunlap, No. 1:20-cv-00216-NT, 2020

WL 4275035, at *11 (D. Maine July 24, 2020) (citation omitted). The election statutes

promulgated by the Legislature reflect a preference for in-person voting. That preference

represents a policy choice within the scope of the Constitution’s express delegation to the

Legislature. Within the scope of the Constitution’s delegation also are the policy choices

of the Coordinator of Elections, to whom the Legislature has delegated the authority to

oversee the conduct of elections in this State. This includes the policy choices made with

respect to the conduct of elections during the COVID-19 pandemic. These policy choices

will be judged by history and by the citizens of Tennessee. We, however, properly may

not and will not judge the relative merits of them, regardless of our own views. To do so

would be to exceed the proper scope of our role as jurists.19

We find that the State’s interests in the efficacy and integrity of the election

process are sufficient to justify the moderate burden placed on the right to vote of those

plaintiffs and persons who neither have special vulnerability to COVID-19 nor are

caretakers for persons with special vulnerability to COVID-19. We, therefore, conclude

that those plaintiffs are unlikely to succeed on the merits of their claims.20 Accordingly,

we hold that the trial court erred in granting a temporary injunction as to those plaintiffs.

19

Our recognition of the prerogative of the Legislature, and the Coordinator of Elections as its

designee, to make policy choices is not intended to be nor should it be construed to be an endorsement of

these particular policy choices. See Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct.

1205, 1208 (2020) (“The Court’s decision on the narrow question before the Court should not be viewed

as expressing an opinion on the broader question of whether to hold the election, or whether other reforms

or modifications in election procedures in light of COVID–19 are appropriate. That point cannot be

stressed enough.”). Moreover, our decision in these cases at this time in no way precludes the Legislature

and the Coordinator of Elections from making such other policy choices as the changing circumstances

may warrant.

20

In light of this conclusion, we need not address the remaining injunction factors. See Obama

for America, 697 F.3d at 436; Lyons, 2020 WL 3396319, at *2.

- 29 -

III. Conclusion

For the reasons stated herein, the judgment of the trial court granting the plaintiffs

a temporary injunction is vacated and the cases are remanded to the trial court for further

proceedings consistent with this opinion. Recognizing that absentee ballots already have

been cast for the August 6, 2020 election consistent with the trial court’s temporary

injunction, and mindful of the goal of avoiding alterations to election rules on the eve of

an election, see Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S.Ct. 1205,

1207 (2020) (citations omitted), the absentee ballots of all Tennessee registered voters

who timely requested and submitted an absentee ballot by mail for the August 6, 2020

election pursuant to the trial court’s temporary injunction and which absentee ballots

otherwise meet the requirements of the absentee voting statutes shall be duly counted.

See Tenn. R. App. P. 36(a). Costs on appeal are taxed half to the plaintiffs on appeal and

half to the State defendants, for which execution may issue if necessary.

_________________________________

CORNELIA A. CLARK, JUSTICE

- 30 -